Two Modes of Judicial Deference

In order to preserve the courts’ subsidiarity, even when they monitor the legislature, we must develop a suitable concept of judicial deference. This is the aim of this chapter. It distinguishes two modes of deference, the epistemic and the robust. On the epistemic model, deference affects the deliberative process of judges but does not change the standard by which we evaluate legislative decisions. On the robust model, deference does not affect judicial deliberation but changes what is the right thing to do; it may require giving effect to the authority’s decision, although it is sub-optimal as far as its content is concerned on the strength of countervailing considerations of institutional design. These two modes of deference can also be combined (composite deference). Deference, thus understood, is not erratic and ad hoc but sensitive to reasons of political morality and amenable to rational application.